A Big Damn Deal

not simply speaking for myself and Senator Ted Cruz. I am reading the words of Justice Samuel Alito, who is apparently writing the majority opinion of the Court in a leaked document, a document that was leaked in what the Chief Justice John Roberts calls a singular and egregious breach of trust on the Supreme Court. We're gonna be talking to someone who knows a whole lot about the Court, a whole lot about the issue, and a whole lot about what happens now. This is verdict with Ted Cruze.

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American Hartford Goal. Now, the new inflation numbers are out, and I think we can all agree they are incredibly depressing. The price of gas is way up, the price of housing is up, the US national debt is way way way up. And unfortunately, given the way that our current administration prints money and spends money, experts don't see this going away, this inflation going away anytime soon. So how

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call them right now. Call eight five five seven six eight one eight eight three, or if you prefer texting, you can text the word tactus to six five five three two. Again, the phone number is eight five five seven, six eight one eight eight three, or text the word tactus to six five five three two. Welcome back to Verdict with Ted Cruz. I'm Michael Knowls, Senator. I have seven bazillion questions to ask you about this. You've just come from the Capital. We have not even had a

prep call yet, we have not talked about anything. Tell me everything that I need to know about this leaked document from the Supreme Court. Well, let's start on the substance. The substance is this is a big damn deal. Assuming that the report warding that a company that this league is accurate. It turns out what you and I discussed on this podcast days after the oral argument appears to be exactly right. On this podcast, you and I talked

about what the justices were likely to do. I had listened to the argument very carefully, and what I told you at the time is that I believe there were six votes to uphold the Mississippi law, the Mississippi law restricting abortion after fifteen weeks. And I also thought there were five votes to overrule Row versus Wade in its entirety. So there's a distinction to be out there because the case at issue, or the law at issue, is this

pro life law in Mississippi. So you could have a world in which you have different judges voting to uphold or strike down that law. Then you would have to go all the way back and overrule Revue Weight and planned parenthoodbe Casey, which invented the constitutional right to an abortion.

That that's exactly right. And what Maya's assessment was from listening to the oral argument is that John Roberts, the Chief Justice, seemed prepared to uphold the Mississippi law, but he wanted to find a way to do it without overruling Row versus Weight. And remember I went into this argument deeply skeptical. I was not convinced there were five votes on the Court to overturn Row. I knew there were two. I knew Justice Alito and Justice Thomas, They'd

both been quite public about that. But I had real skepticism about Kavanaugh, about Gorsitch, and about Barrett. From listening to the oral argument, all three seemed to be clearly leaning in in support of overturning Row, and from this opinion it appears that's exactly how they voted. Well, I guess we also have to establish first, this leaked document that went to Politico on Monday night and then was released to the broader public, the document is legit correct.

This is an actual draft opinion from the Supreme Court. So it is the Court has confirmed that that this is a real draft opinion. And I got to say, that is a big damn deal. Like when this came out, that this came out Monday night, I was having dinner with some friends. You know me, Well, I am rarely at a loss for words. It's true. I was genuinely speechless.

And it's difficult to convey to someone who doesn't regularly practice in front of the court, who doesn't interact with the Supreme Court often, the magnitude of the breach this represents. It is stunning at a level that is horrifying. In over two centuries of our country's history, never, not even once, has a draft opinion leaked from the US Supreme Court for this to happen. The Court has been this goes right to the heart of the integritegrity of the court,

and it goes right to judicial independence. And I promise you this entire day has been like an earthquake at the Supreme Court because it undermines the ability of the Court to do its job. And what it means happened? I think in all likelihood, what it means is that there was a left wing law clerk who was upset at how the justices voted and decided to leak this opinion. And just as a matter of procedure, you've got all these law clerks and what are they Are they on

an email threat or something? You know, this draft goes back to February. So obviously the justices and the clerks have been working on this for a long time. And is it just that any clerk can see any of these drafts? Is there any Is there gonna be any way to identify who actually did this? I guess is what I'm asking. So there may well be. So the way it works is when a case is argued, shortly after the argument, either on Wednesday or Friday, the court

meets in conference. Now, conference is a special room. The conference room is actually attached to the chief justices chambers, So there's a conference table. In conference, it is only the nine justices. There's nobody else in the room. There's no law clerk, there's no secretary. It's the nine justices. Actually, the door leading to the conference room there two doors. There's a door and then there's about three feet of space, and then there's a second door. And the junior justice

is expected to get coffee for the others. And if for some reason someone needs to pass a note to the justices, you open the outer door, you put the note on the floor, you knock on the inner door, You close the outer door, and then the junior justice goes and opens the inner door and gets the note. It's it's like an airlock. At conference, the justices cast their initial votes. In this instance, assuming the reporting is accurate, six justices voted to uphold the Mississippi Statute and five

justices voted to overturn Row versus weight. When that happens, the senior justice in the majority assigns the majority. Given the line up here, it appears likely that that was Justice Thomas, who was the senior justice in the majority, and he chose to assign it to Justice Alito, who's the next most senior justice in the majority, and Justice

Alito is a masterful opinion writer. Do you have any sense, Senator, at knowing some of the people involved here and having spent a lot of time around the court, why would Thomas not want to keep this for himself. This could be the most important decision in the last hundred year. I mean, this could be one of the most important decisions in American history. Yeah, I look, I don't have a great answer to that. I'm actually a little bit surprised.

Justice Thomas didn't assign it to himself because he had that prerogative. But he made the judgment, and as the chief Justice, by definition, is the most senior justice in the majority. But in this instance, he wasn't voting to overturn Row versus Wade, so he would be writing his own independent opinion. If he could get five justices, he could assign the majority, but he was not willing to overturn Row, according to the reporting, and so Thomas made

the assignment. Now, the way it works, once that's assigned, the justice who's assigned the majority opinion goes back to his or her chamber, and each justice has four law clerks. There will be one law clerk who is the lead law clerk on the opinion. So if there are four of you, each of you have a quarter of the cases before the term. The justice and the law clerk will work together drafting the opinion, and when you prepare an initial draft, you circulate it to all nine justices.

That's what this is. So that was the first draft. Justice Alito circulated it to all nine justices. When that happens, at that point, nobody has joined the opinion, So it's not the opinion of the court. It is your draft that you're circulating to the other justices to get their opinions. What happens next is multiple iterations of edits, where you'll have individual justices that will say, hey, I don't like this paragraph. Hey, can you change this sentence? Can you

add this footnote? Can you delete this footnote? Now, I don't like the way this is structured. And on a run of the mill opinion, you could get dozens or even hundreds of edits. On an opinion like this of this magnitude, you would expect hundreds, if not even thousands, of edits. This is for the history books. Every justice has to decide whether he or she will join the opinion in particular, the five justices and the majority here have to make a decision whether they will join the opinion.

They may have all sorts of changes to it. And if they don't join the opinion, then they write their own concurring opinions, So they would they would be still voting to overrule Row. But they might say, I just don't agree with the way Alito is going about this. Yeah, And they could do that, And you do get opinions. You get sometimes cases where you have multiple opinions, concurring opinions to sending opinions concurring in part to sending in part.

I mean it can get complicated. In order for the opinion to be the majority opinion, the opinion of the court, five justices have to join it. So it's consequential to have a majority opinion because the opinion of the court is precedent. And in this instance, I think the five justices who presumably are voting to overturn Row, want there to be an opinion of the court. So there's a high unless there's something you cannot live with an opinion

with five justices as qualitatively different as legal matters. In an opinion with just four. Also in response to the opinion, other justices are working on a concurring opinion. So Roberts, assuming he wants to uphold the statute but not over rule Row, would file a concurring opinion where he concurs in the judgment. In other words, he agrees with the judgment that the law being challenged is valid, right, but he concurs for a different reason. So he would not

overturn Row. But for whatever reason, he would lay out he thinks that the law is valid. And then the dissenters, presumably the three liberals on the court would write one or two or even three to cents. My guess is all three will write dissents. In this case, there will probably be a lead dissent, and that's typically a signed by the senior justice in the minority, But anyone can write a dissent, and so someone is given the nod of you be the lead dissenter, but there can be

additional ones. What happened here is somebody handed over to the press the first iteration of this. You know, when you start as a clerk, your first week as a clerk, you sit down an orientation and they stress secrecy, They stress everything done in the courts confidentially. You don't talk about anything that happens at the court. You don't bring draft opinions home. You do your work in the Supreme

Court building. So in any given night, the court is full of law clerks at midnight, one in the morning working on draft opinions and doing your work because you don't bring the opinions home. And so there is a a primacy on confidentiality and trust that somebody violated in a way that is truly historic and stunning. So what is going to happen to person? I know that the Chief Justice sent out this statement today. He said, yes, we're confirming this was a draft opinion. This is egregious.

This is a singular breach of trust here, and I'm ordering the Marshal of the Court to launch an investigation into the source of the league. One is he going to be able to identify the source? And two? Did this person break a law? I mean, is this going to be a little slap on the wrist by John Roberts or are we talking about jail time? So we're talking about something very very serious. Let's start with the first thing. I very much hope they find out who

the leaguer is. I think it is incredibly important that they find this person. The Marshal of the Court, they have considerable resources. There's a whole police force at the Court. They're about five hundred officers at the Court. So the Supreme Court takes separation of powers very seriously, so they don't want they don't allow capitol police into the Supreme Court. So the US capital has a whole capitol police force, but the Supreme Court they're a third branch of government.

They're not part of the Congress, and so capital pet police, in their view, have no business in their building. You know, they don't generally handle law enforcement investigations. What the Supreme Court police typically do is stop protests and threats to the justices of the Court. But that being said, they're pretty considerable security measures at the court. And it's also a limited universe. So at several reporters asked today what if it was a justice that did this. I gotta

tell you, I just don't believe that. It is such a grotesque violation of trust. To me, it is beyond imagination that a justice would do this. It to use the nuclear code example, it's it's like the president handing the nuclear codes to putin it just I cannot believe even the most left wing justice would do this. I think it is very very likely a law clerk, and it is very very likely a law clerk for one of the three liberal justices. That means there are twelve

human beings who are your likely suspect pool. That's not a big likely suspect pool. It is likely to be someone who is a hard partisan and who was willing to burn the place down because he or she was so upset about what happens. If I were to guess the most likely justice for whom the law clerk is clerking as Sonya Sotomayor, because she's the most partisan of the justices and so she's the most likely to hire wild eyed partisans as clerks. I have no evidence of that.

I'm just just making an inference. And with respect to the chain of custody, Look, the Supreme Court has technology. Actually when you print out opinions, I don't want to get into the details of how, but they are printed out with identifying materials that forensically you can find out where they were printed out from, whether they are able to track that down or not. In this instance will depend on whether they can get a copy of the actual opinion. Politico just put up a PDF. But the

Supreme Court has taken pretty significant steps towards security. So as a law clerk, for example, when you're editing an opinion, you do it on the computer. If you print an opinion out, you can print it and read it in your office and you can edit it, but you never take it home. And when you're done with it, you throw it in a burn bag. And every law clerk has a burnbag, typically under your desk. And the burn bag is about this tall, and it's a kind of

brown and red striped bag. And that bag is sealed and then it is shredded twice horizontally and vertically, and then it is burned and it is rendered completely unreadable before it leaves the building. And that is that's the level of security they take in that building. One question we don't know was this individual how smart a crook were they? We know the reporters who publish the story.

One of the natural inquiries is going to be, particularly of the twelve likely suspects, what contexts did they have with those reporters? Did they know the reporters Did they go to school with the reporters? Do they have emails with the reporters? Do they have phone calls with the reporters? Do they have text with the reporters. I don't know the answer to any of that. I don't know whether these are master criminals or not. But it strikes me that it is very possible there is an electronic trail

or a personal trail. Now, in terms of the consequences, if they identify the perpetrator, I am confident the perpetrator would be fired on the spot, but instantaneously you would lose your job. I am also confident that the perpetrator would be disbarred. That assuming the perpetrator was already a member of the bar. Sometimes clerks and members of the bar sometimes they're not yet. Like I was not yet a member of the bar when I was a clerk because I didn't I had not yet had time to

take the bar exam. I took the bar exam right when I finished my clerkship. If this clerk, you know, presumed clerk, were not yet admitted to the bar, could they be preemptively held from from ever entering the bar. I don't think any bar would admit this person, I think this person's legal career is over if they If they are okay, and and by the way, that's a big deal. To be a Supreme Court clerk is the pinnacle of legal achievement for a student coming out of

law school. They're only thirty six in the entire country. You get a signing bonus at a law firm as a Supreme court clerk. I think the current bonus is three hundred and fifty thousand dollars. The day you walk into the door at the law firm one I was clerking, it was fifty grand, so so you can see inflation. It makes a big difference. But at a minimum, the perpetrator would be fired and would never practice law. But

there's a very real possibility. So in the course of the investigation, the investigators will question the clerks if they lie to the federal officers. Section one thousand and one or the Federal Criminal Code makes it a felony to lie to a federal officer that carries prison time. And so if they lie in the course of the investigation, I think they should be prosecuted and they should serve

the maximum prison time possible. If they don't lie. It's a little more complicated whether they've in fact violated a criminal prohibition or not. I've actually asked my team to try to do some deep dive research on that. But I think regardless, the penalty should be as significant as possible because the damage to the court will be far lasting. It is going to make it incredibly difficult for the justices to trust the process of deciding cases in a

collaborative matter, sharing drafts, going back and forth. If people treat it as just another political process, that does massive damage to the court's ability to do its job. So putting this criminal aside, you know, hopefully we can deal with this person. They're disbarred, they get thrown in jail and alcatraz, and they throw away the key. I almost don't even care about that person in spite of the attacks on the court and the institutional integrity, because I

care so much about the case. So I don't want them to take away the joy that pro lifers should feel here in that it looks right now like the Court is going to overrule Row and Casey. This is something we've been waiting for for half a century. Sixty two million babies have been killed throughout since the Revuewaghe decision. So this is huge news unless it isn't. This was just a draft from February. So where does the case stand. Well, that's exactly right. And that is the single most dangerous

thing about this league. The reason in all likelihood that this league happened is a left wing law Clark was trying to direct political pressure to the five justices to cause them to switch their vote. And justices switch their votes all the time. It's not a majority opinion, it's not a holding of the court until the opinion issues. At this point, it's just a draft. And this one

of the things understand about this league. This is the most egregious manifestation of a multi year campaign by Democrats to politicize the Court and to pressure it. And you know, look, I'll give you some example. So Senator Schumer stood on the steps of the Court a couple of years ago, held a press conference and here's what he said. He said, quote, I want to tell you Gorsuch. I want to tell you Kavanaugh, you have released the whirlwind and you will

pay the price. You won't know what hit you if you go forward with these awful decisions. So you had then the Senate Minority leader, now the Senate majority leader, directly threatening justices if they didn't vote the way he wanted. Sheldon Whitehouse is a senior Democrat in the Judiciary Committee. He filed an amicus brief in the court stated quote, perhaps the Court can heal itself before the public demands it be restructured in order to reduce the influence of politics,

particularly on the urgent issue of gun control. A nation desperately needs it to heal. These are partisan democrats threatening and trying to intimidate the court to decide cases the way they want. That manifested even further in the campaign to pack the court to add four new left wing justices and grow it to thirteen. And by the way, not just that. So there's a whole dark money network, what's called the Arabella network of wealthy leftist who played

wage dark money campaigns on judicial confirmations. They went to Brett Kavanaugh's house trying to intimidate him personally and threaten his family with Justice Brier, the reliably liberal democrat Justice Brier Demand Justice, which is which is the kind of main front group for the leftist launched a campaign to force justice Brior to retire, including creating a mobile billboard

truck to pressure Justice Brier. These are partisan Democrats and so after this league happened, let me tell you what some of these leftist activists have said. Guy named Brian Fallon, who is the executive director of Demand Justice, used to work for Chuck Schumer. He tweeted out, quote, Scotus leaks are good elite lawyers on both the left and right, treating the court as precious. All these years have been given cover to an institution that is wholly unaccountable. The

veil off. There's another guy, another leftist guy named Ian Millheiser, who tweeted the following serious seriously shout out to whoever the hero was within the Supreme Court who said ef it, although he didn't abbreviate f ef it. Let's burn this place down. That is what the left is doing with ending the filibuster, with trying to take over federal elections. They're trying to burn the Senate down. They're trying to destroy our institutions, and this league reflects the manifestation of

that multi year campaign to burn the court down. And their activists are cheering this. So will it work? Senator. Will this pressure campaign and the league and the whole operation here, will it work to pressure one of the five justices to flip the vote? Are we going to see the ruling anytime soon? Are they going to wait for a month or two, or are we going to get it? We've already seen a draft from February. What is the status of the case right now? So I

don't think it will work. The Chief Justice today put out a statement saying that it will not work, that it will not intimidate the court. This is an obvious attempt to pressure the justices to change their votes, and I think it is likely to backfire, that it's likely to cause them to dig in even more. Because for any justice at this point, when it's publicly known that you were voting one way, for you to give into the political pressure and flip would do possibly permanent damage

to the credibility of the court. It would be to transform the court into a nakedly political body. Interestingly enough, I think nobody is more dismayed about this than John Roberts. Even though according to the Politico report, he doesn't agree with overturning versus Wade, he cares deeply about the institutional credibility of the Court. As you know, I know John Roberts very very well. I am certain he is horrified, and in fact, I think I have no doubt all

nine Justices are horrified. I mean to give you a sense of the character of the place. I clerked for Chief Justice Rehnquist nineteen ninety six to nineteen ninety seven. At the time there was a tradition where the law clerks for each justice would go and have lunch with each of the other justices. It's very cool tradition. So you got to go have lunch with each of the

other eight. At the time, I clerked Byron White, who was a retired justice, but he still went into work, and we very much wanted to have lunch with Byron White. He refused to have lunch. And the reason he wouldn't have lunch is because of the Brethren. So Bob Woodward, the reporter of Woodward and Bernstein, wrote the book The Brethren.

It came out in the seventies and it's like this tell all from within the Supreme Court, with lots of gossip and lots of internal information about the deliberations of the court. A number of law clerks after the fact talked with Woodward. There's there's speculation at least one justice, likely Potter Stewart, talked with Woodward, and it was a scandal at the Court of Massive Proportions. So I read

The Brethren when I was in high school. I think I was fifteen when I read it, and I thought, Okay, this like being a Supreme Court law clerks, sounds like the most amazing job on the face of the planet. I want to do this more than anything else. And it worked out that I got to. But ever since the Brethren, Byron White said I won't sit down and talk to other law clerks. I'll talk to my own clerk, but I won't talk to other law clerks because of

the Brethren. That's and by the way, this was decades later that White still would not have lunch with clerks from other chambers. I think the repercussions of this will also be decades long. But I also think it is likely to harden the five justices in the majority of fact. I don't think it's impossible Roberts joins them because of

this league. I doubt it, but the chances aren't zero that Roberts writes something that said, this league is unprecedented, wholly unjustified, an assault on the integrity of the court. You know, the closest analogy is the Obamacare case that upheld Obamacare, and in that case, after the decision came down, there was widespread leaking that Roberts had initially voted to strike down Obamacare and then had switched his vote to a hold it. And I have no reason to doubt

that reporting. Now that was prior to this, the greatest breach that had ever happened. It was really dismaying to see the clerks leaking like this, But that was a qualitatively different situation because those leaks all came after the fact, after the opinion was down, just providing some explanation and context. In this instance, the league happened before the opinion was issued, and it's an effort to intimidate the justices into changing

their votes. It's why it's a threat on the independence of the judiciary, because it's designed to try to move their votes. I think the effect will be the opposite, and that it will harden them because no justice wants to show that they're so unprincipled they can be moved by this. Right now, before I let you go, Senator.

I know it's been a very long day and there's still much more to do, but I've got to turn to your particular branch of government now because one of the consequences of this league is you've got all of the elected Democrats up to and including Joe Biden saying that we need to codify Roe versus Weight into law. If the Court is going to behave in this irresponsible manner and strike down row View Wade, then we need a national pro abortion law. Can Joe Biden get that done?

I do not believe so. I think he can pass it through the House. They've got a majority in the House, and I think the Democrats will stick together, and you may have a couple of Republicans in the House. I don't I haven't followed the kind of abortion lines in the House, but there may well be some pro choice Republicans in the House. In the Senate, he will not get it done because to get it done will require

sixty votes because of the filibuster he would get. He'll get all fifty Democrats and I'm sure we'll vote on it. He will get Susan Collins, and I think he will likely get Lisa Murkowski, you get to fifty two, I don't know that you get any higher. The other forty eight are on record that Row is wrong in this case. I filed an amicus brief with the court along with Mike Lee and Josh Holley, arguing to the court specifically

that it should overturn Roe versus Wade. I don't think there's any universe in which we get to sixty votes. So I assume the Democrats will try to force a vote on it, and they'll lose the vote. Now, there is some danger that Schumer. In fact, I think it is certain that Schumer will use this to try to end the filibuster. Right, there's some danger he succeeds, and if this becomes the issue they blow up the filibuster on, they will have succeeded in in permanently damaging two branches

of government instead of just one. So you think there is a chance that, as they've already said explicitly, I think that not only will they try to get rid of the filibuster on this issue, but they would actually succeed in doing so. They could get a maybe a Joe Manchin or a Kurston cinema or who knows. I think it is possible. I don't know that it would happen, but I think their plan is to try one fast point. I don't believe any Democrats senator has condemned the League today.

If they have, I haven't seen it and I was watching for it. It is ominous that the Democrats are not even willing to condemn the League, and it everyone should condemn. The League is as grossly a gross violation of trust. And it's ominous that if Democrat senators did so, I didn't see it. Wow, that is spooky and does maybe tell you something about how they're thinking about a national abortion law or ending the filibuster. On that scary note,

we must leave you. We will see you on Apple podcast, YouTube, Spotify, everywhere you get your podcasts. Make sure you subscribe to Verdict. Leave a five star review if you don't mind. In the meantime, I'm Michael Knowles. This is Verdict with Ted Cruz. This episode of Verdict with Ted Cruz is being brought to you by Jobs, Freedom and Security Pack, a political action committee dedicated to supporting conservative causes, organizations, and candidates

across the country. In twenty twenty two, Jobs Freedom and Security Pack plans to donate to conservative candidates running for Congress and help the Republican Party across the nation.